State v. Clark
| Decision Date | 04 July 1910 |
| Citation | 52 So. 691,97 Miss. 806 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI v. ISAAH CLARK |
October 1910
FROM the circuit court of Holmes county, HON. J. M. CASHIN, Judge.
Clark appellee, was indicted, under Code 1906, § 1331, for mingling poison with whiskey with intent to kill or injure Mary Jane Clark. The appellee demurred to the indictment, and from a judgment sustaining the demurrer the state appealed to the supreme court.
The indictment, omitting the formal parts, is in this language "That Isaah Clark, in the said county, on the 11th day of March, 1910, unlawfully, wilfully, feloniously, and of his malice aforethought, did then and there mingle poison, to wit, carbolic acid, with a certain drink, whiskey, with intent then and there unlawfully, wilfully, feloniously, and of his malice aforethought, to kill and injure one Mary Jane Clark, a human being." The demurrer to the indictment assigned two grounds: first, that it charged two distinct offenses, mingling poison with a drink with intent to kill and mingling poison with a drink with intent to injure second, that the indictment "does not show that said drink, to wit, whiskey, was the drink of Mary Jane Clark, nor that it was intended that she should drink the same nor that she was about to or intended to drink the same, nor that it was in her possession for any use whatsoever."
Reversed and remanded.
Carl Fox, assistant attorney-general, for appellant.
The statute under which appellee was indicted, Code 1906, 1331 uses the words "kill or injure," while the indictment reads "kill and injure." Appellee demurred to the indictment on the ground that it charged two crimes: a mingling of the poison with intent to kill, and a mingling of the poison with intent to injure. It certainly was never intended by the legislature that the state should be required to choose between an intent to kill and an intent to injure, with so subtle a thing as poison. It would be a very different matter from proving an attempt to kill with a deadly weapon. 1 Bishop's New Crim. Proc. (4th ed.) §§ 436, 586; Bishop on Stat. Crimes (3rd ed.), § 244.
Taking up the second ground of demurrer, that is, that the indictment does not show that "the said drink of whiskey was the drink of Mary Jane Clark; nor that it was intended for her to drink the same; nor that she was about to drink or intended to drink it," nothing like this was contemplated by Code 1906, § 1331. It makes no difference whose whiskey it was; nor is it necessary that the person for whom it was intended should be about to drink it, or have any knowledge of it. The offense defined by the statute is the mingling of poison with any food, drink, or medicine, with intent to kill or injure any human being.
Tackett & Elmore, for appellee.
It is not always sufficient for the indictment to charge a crime merely in the language of the statute concerned. This has been held with reference to Code 1906, § 1331, and likewise as to a number of other statutes. Norton v. State, 72 Miss. 128; Rawls v. State, 70 Miss. 739; Sullivan v. State, 67 Miss. 346; State v. Bardwell, 72 Miss. 535; Taylor v. State, 74 Miss. 544.
There are three statutory crimes for the protection of persons against malicious poisoning. If poison is administered with intent to kill and death follows, murder has been committed. If poison is administered and death does not ensue, the crime is punishable by Code 1906, § 1330. If poison is mingled with any drink, food or medicine but not taken, the crime is punishable under Code 1906, § 1331.
Under the indictment in this case if it should be shown on the trial that appellee, Clark, with intent to injure or kill Mary Jane Clark, mingled carbolic acid with whiskey in a vial which he put in his pocket and immediately after dashed the vial on the ground and scattered the whiskey and poison, he could be found guilty as...
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